A second meeting was held at Dachau, attended by Ruff, Romberg, Weltz, Rascher, and the camp commander, to make the necessary arrangements for the conduct of the experiments. The mobile low-pressure chamber was then brought to Dachau, and on 22 February 1942 the first series of experiments was instituted.
Weltz was Rascher’s superior; Romberg was subordinate to Ruff. Rascher and Romberg were in personal charge of the conduct of the experiments. There is no evidence to show that Weltz was ever present at any of these experiments. Ruff visited Dachau one day during the early part of the experiments, but thereafter remained in Berlin and received information concerning the progress of the experiments only through his subordinate, Romberg.
There is evidence from which it may reasonably be found that at the outset of the program personal friction developed between Weltz and his subordinate Rascher. The testimony of Weltz is that on several occasions he asked Rascher for reports on the progress of the experiments and each time Rascher told Weltz that nothing had been started with reference to the research. Finally Weltz ordered Rascher to make a report; whereupon Rascher showed his superior a telegram from Himmler which stated, in substance, that the experiments to be conducted by Rascher were to be treated as top secret matter and that reports were to be given to none other than Himmler. Because of this situation Weltz had Rascher transferred out of his command to the DVL branch at Dachau. Defendant Romberg stated that these experiments had been stopped soon after their inception by the adjutant of the Reich War Ministry, because of friction between Weltz and Rascher, and that the experiments were resumed only after Rascher had been transferred out of Weltz Institute.
While the evidence is convincingly plain that Weltz participated in the initial arrangements for the experiments and brought all parties together, it is not so clear that illegal experiments were planned or carried out while Rascher was under Weltz command, or that he knew that experiments which Rascher might conduct in the future would be illegal and criminal.
There appear to have been two distinct groups of prisoners used in the experimental series. One was a group of 10 to 15 inmates known in the camp as “exhibition patients” or “permanent experimental subjects”. Most, if not all, of these were German nationals who were confined in the camp as criminal prisoners. These men were housed together and were well-fed and reasonably contented. None of them suffered death or injury as a result of the experiments. The other group consisted of 150 to 200 subjects picked at random from the camp and used in the experiments without their permission. Some 70 or 80 of these were killed during the course of the experiments.
The defendants Ruff and Romberg maintain that two separate and distinct experimental series were carried on at Dachau; one conducted by them with the use of the “exhibition subjects”, relating to the problems of rescue at high altitudes, in which no injuries occurred; the other conducted by Rascher on the large group of nonvolunteers picked from the camp at random, to test the limits of human endurance at extremely high altitudes, in which experimental subjects in large numbers were killed.
The prosecution submits that no such fine distinction may be drawn between the experiments said to have been conducted by Ruff and Romberg, on the one hand, and Rascher on the other, or in the prisoners who were used as the subjects of these experiments; that Romberg—and Ruff as his superior—share equal guilt with Rascher for all experiments in which deaths to the human subjects resulted.
In support of this submission the members of the prosecution cite the fact that Rascher was always present when Romberg was engaged in work at the altitude chamber; that on at least three occasions Romberg was at the chamber when deaths occurred to the so-called Rascher subjects, yet elected to continue the experiments. They point likewise to the fact that, in a secret preliminary report made by Rascher to Himmler which tells of deaths, Rascher mentions the name of Romberg as being a collaborator in the research. Finally they point to the fact that, after the experiments were concluded, Romberg was recommended by Rascher and Sievers for the War Merit Cross, because of the work done by him at Dachau.
The issue on the question of the guilt or innocence of these defendants is close; we would be less than fair were we not to concede this fact. It cannot be denied that there is much in the record to create at least a grave suspicion that the defendants Ruff and Romberg were implicated in criminal experiments at Dachau. However, virtually all of the evidence which points in this direction is circumstantial in its nature. On the other hand, it cannot be gainsaid that there is a certain consistency, a certain logic, in the story told by the defendants. And some of the story is corroborated in significant particulars by evidence offered by the prosecution.
The value of circumstantial evidence depends upon the conclusive nature and tendency of the circumstances relied on to establish any controverted fact. The circumstances must not only be consistent with guilt, but they must be inconsistent with innocence. Such evidence is insufficient when, assuming all to be true which the evidence tends to prove, some other reasonable hypothesis of innocence may still be true; for it is the actual exclusion of every other reasonable hypothesis but that of guilt which invests mere circumstances with the force of proof. Therefore, before a court will be warranted in finding a defendant guilty on circumstantial evidence alone, the evidence must show such a well-connected and unbroken chain of circumstances as to exclude all other reasonable hypotheses but that of the guilt of the defendant. What circumstances can amount to proof can never be a matter of general definition. In the final analysis the legal test is whether the evidence is sufficient to satisfy beyond a reasonable doubt the understanding and conscience of those who, under their solemn oaths as officers, must assume the responsibility for finding the facts.